National Policy for Disabled People is more a compilation of programmes than a policy: Amita Dhanda

Consultation
with persons with disability has never been an article of faith or an integral
component of government policy. It has always been something, which persons with
disability have wrested from the government. The consultative fiasco on the
National Policy is one more example of state authoritarianism in the field, says
Dr. Amita Dhanda, disability law expert, in conversation with
Parvinder Singh.

1. It has been ten years since The Disability Act was passed. How do you assess
the status of Act vis-à-vis its implementation and awareness?

When you ask a question of this kind you presumably ask
it from the standard of 100% awareness and implementation. Now this is a
standard from which there shall always be a shortfall in reality. However if we
do not set up such an impossibly high standard, we could say that both on the
awareness and the implementation scale, the Act has done reasonably well.
Possibly better on the awareness scale than the implementation one. This is a
happy situation because the moment people are aware of their rights they exert
pressure on those who are responsible for implementation to do their duty. And
this implementation has been obtained in the Disability Act both by directly
requiring appropriate governments to do their duty and by seeking the help of
the Courts to make the governments to fulfil their responsibilities. In fact the
receptiveness of the Courts has substantially contributed to increasing the
pressure on governments to do their duty under the Act. Please note I am saying
‘has increased pressure’ because are many a situation where governments have
continued to drag their feet even after the order of the Court. A case in point
is the judgement of the Bombay High Court asking the Department of Health,
Government of Maharashtra asking the government to restore the service of a
nurse who had been discharged after acquiring psychiatric disability. The
Government till date has neither restored her service nor paid her back wages
and this when the Bombay High Court had clearly asked them to do both.

2. The
Amendments to the Disability Act have not moved ahead since they were proposed.
Please share with us the urgency of adopting these amendments. Is there a need
to re-look into these and prepare a new set of recommendations?

The Amendment Committee was set up in August 1998. It submitted an interim
report in December 1998 and a final report in March 1999. These time frames were
kept because the then Minister of Social Justice and Empowerment had made
promises of early if not immediate implementation. Unfortunately the report was
consigned to the proverbial cold storage and I do believe has been overtaken by
events and time. Whilst there are many a recommendations in the report that
would survive the test of time, there are others, which require to be
reconsidered. Ideally it would be correct to re-examine the recommendations and
to bring them in accord with current developments. However such a review should
be time bound so that the review does not become an excuse for not acting on the
legitimate suggestions of the Amendment Committee.

3. The Union Cabinet recently approved the
National Policy for Disabled People. The consultative process before the framing
of the policy had come under severe criticism from the disability sector for
being undemocratic and incomprehensive. What are your views on the policy and
this criticism?

I think there is a need here to distinguish
between a policy and programmes. The National Policy for Disabled People is more
a compilation of programmes for disability than a policy. The programmes have
been devised depending on what the non-disabled world thinks is required for
persons with disability-- a perspective which is inherently faulty. Consultation
with persons with disability has never been an article of faith or an integral
component of government policy. It has always been something, which persons with
disability have wrested from the government. The consultative fiasco on the
National Policy is one more example of state authoritarianism in the field.

4.
Policy makers have so far neglected people with mental disabilities. Do you feel
that the disability advocacy movement has also been responsible in pushing
mental health to the periphery?

We have a saying in Hindi that you cannot get
milk from even your mother without crying. The voicelessness of persons with
mental disabilities and here one would include both intellectual and
psychosocial disabilities have definitely contributed to the neglect of the
rights of this group. This is also because there is a prejudicial stereotype
which subsists against persons with mental disabilities and for that stereotype
to be displaced, it is important that there should be direct interaction with
persons with mental disability. You have here a catch 22 situation. The stigma
which subsists against persons with mental disabilities silences and isolates
them and yet if this stereotype has to be displaced, it is imperative for them
to speak up.

5. What do you think would be the long-term
impact of the passage of the UN International Convention on the Protection and
Promotion of the Rights and Dignity of Persons with Disabilities? What would be
the implications for a developing country like India?

An international Convention unlike a national
scheme or programme puts down a set of principles, such as recognition,
protection, and promotion of rights of persons with disabilities. These
principles would provide a whole new perspective of approaching Disability
Rights. And this aspirational agenda of the Convention, if adopted, should
slowly revolutionise governmental approaches towards persons with disabilities.

6. What has been the stance of Government of India so far on the UN Convention?

The Government of India has adopted the line that it will
fulfill its
responsibility vis-à-vis persons with disability without international
prompting. Hence it has adopted a most conservative stance in the United
Nations. The stance has been prompted by the need to ward off international
oversight rather than what the government believes should or should not be done
for persons with disability. The importance the state accords to the Convention
can also be deduced from the size of the State delegation to the negotiations.
The Government of India has been sending single member delegations and this solo
membership has been shared between the Ministry of Social Justice and
Empowerment and the Legal and Treaties Division of the Ministry of External
Affairs. And this is the case when small countries like Kenya are sending 6-7
member strong delegation.

7.
So far there has been little agreement on the placement and inclusion of women
with disabilities as a separate category in the Draft Convention. What is your
view on this?

The matter is still under deliberation. There
is a strong Women’s Caucus, which has been lobbying for a twin track approach
that is both mainstreaming of gender into several articles and a separate
article. The view is starting to gain strength; hence it cannot be said which
way the Ad Hoc Committee will decide ultimately. I personally favour the twin
track approach.

8. To what extent are disabled people themselves involved in drafting of this
Convention? What monitoring and implementation mechanisms are proposed in the
Draft?

The involvement of disabled people is revolutionary if seen in the context
of International law making. The General Assembly in its resolution had asked
for the involvement of disabled people and this has resulted in Disabled People
Organizations being an integral part of the Convention making process. They have
been sitting around the table with State parties continually indicating what is
or is not acceptable to them in the Convention. The comprehensive response on
the Chairs text by the International Disability Caucus (I.D.C.) is one more
example of this informed involvement. The I.D.C. response has in the current
negotiations become the touchstone of legitimacy for State proposals. The
monitoring mechanisms both international and national are still being
deliberated upon. The Ad Hoc Committee is still examining various proposals. It
is hoped that the Chair of the Committee will come up with a working text in the
next few days.

9. Does the Convention have any
penal clauses if the governments fail to implement it?

International censure is the usual penalty when
governments fail to fulfill an international obligation. However it is not
possible to answer this question because the text for the provision on
monitoring has not even been proposed let alone settled.